Green v. State

Court of Criminal Appeals of Texas

Green v. State

46 S.W.2d 1001, 120 Tex. Crim. 355, 1932 Tex. Crim. App. LEXIS 288

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 13, 1932

DocketNo. 14482

StatusPublished

Cited by2 cases

This text of 46 S.W.2d 1001 (Green v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Green v. State, 46 S.W.2d 1001, 120 Tex. Crim. 355, 1932 Tex. Crim. App. LEXIS 288 (Tex. 1932).

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Opinions

LATTIMORE, Judge.

— Conviction for murder; punishment, five years in the penitentiary.

After an argument between appellant and deceased in a restaurant, a difficulty presently ensued, on the porch of the building, in which deceased was cut three times, one cut, a stab wound, going through the walls of the abdominal cavity and penetrating the stomach. The cutting was on Tuesday night, and deceased died the following Sunday, peritonitis having set in.

Inasmuch as appellant on cross-examination brought out from the first state witness, and later from others, the fact that appellant came to the hospital where deceased was taken for treatment and there said that he wanted to pay the doctors’ and hospital bills; also the further fact that when a witness in his own behalf appellant swore that he and deceased were close friends, and that if he cut deceased on the occasion in question he did not know it at the time, and that he had offered to pay the expenses, — all evidently for the purpose of rebutting any inference of malice, ill-will or evil intent, — we would not seriously think it any error for the state thereafter to ask, on cross-examination, the mother of deceased, who testified for the defense, — if appellant had paid the funeral expenses of deceased, which question she answered in the negative. It is not of moment, but the testimony of this witness on the point, as revealed by the statement of facts, is that “Charlie Green has never paid me a dime for the expenses of Votie’s illness; his funeral expenses were paid by the K. of P. Lodge.” It would appear reasonable that the state might thus show that appellant’s deeds and words were not in accord, and that the former rebutted and overcame the latter. It might also be reasonable to hold that in case appellant had paid such expenses, this fact might shed light on the motive of the mother of deceased in giving testimony favorable to appellant. We are of opinion the cross-examination was permissible. The facts, and hence of course the law applicable, are wholly variant from those in Fowler v. State, 118 Texas Crim. Rep., 419, 38 S. W. (2d) 97, to which our attention has been called.

The hypothetical question by appellant to Dr. Marberry, the objection by the state to which was sustained, appears to have no fair foundation in any statement of facts herein. It appears without apparent question that Dr. Shirley, the colored doctor to whose office deceased was carried, gave what he called first aid to a man in a state of near collapse by sewing up the wound made by the knife of appellant in the walls of the abdomen, in which wound Dr. Shirley said he put a wick drainage consisting of a piece of gauze, — and that deceased was at once thereafter taken in an ambulance to the hospital of Dr. Rush in the same city, and that Dr. Rush at once examined him, and after cutting the stitches of the wound sewed up by Dr. Shirley, discovered that the stomach as well as the abdomen had been penetrated by the knife, and that contents of [358]*358the stomach were leaking out.. No witness testified that these operations were two hours apart, nor did Dr. Rush venture a suggestion as to how long the external wound had been sewed up when deceased was brought to the hospital, except to say that it was “rather recently.” He did testify “The bleeding would have been the same whether or not he had been sewed up.” He was the only physician who saw deceased upon his arrival at the hospital, and he nowhere says that the wound was improperly sewed up. He corroborated Dr. Shirley in saying that deceased was in such condition of shock as that he could not stand much.

Two bills of exception complain of the court’s action in sustaining objections to questions propounded to Dr. Shirley who had testified that he put a piece of gauze, commonly called a wick drainage, in the abdominal wound which he treated, one of the questions being “If Dr. Rush says the wound was sewed up tight, what would you say about it?” The other question was of similar import. There is no doubt but that such question was merely argumentative and called for no fact. The remaining bill was taken to the argument of the district attorney who said: “Ah! Gentlemen of the Jury, such a friend that Charlie Green is. It might not be a negro next time.” The court qualifies this bill of exception and says the argument was made in reply to that of appellant’s counsel.

No error appearing, the judgment will be affirmed.

Affirmed.

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LATTIMORE, Judge.

— Conviction for murder; punishment, five years in the penitentiary.

After an argument between appellant and deceased in a restaurant, a difficulty presently ensued, on the porch of the building, in which deceased was cut three times, one cut, a stab wound, going through the walls of the abdominal cavity and penetrating the stomach. The cutting was on Tuesday night, and deceased died the following Sunday, peritonitis having set in.

Inasmuch as appellant on cross-examination brought out from the first state witness, and later from others, the fact that appellant came to the hospital where deceased was taken for treatment and there said that he wanted to pay the doctors’ and hospital bills; also the further fact that when a witness in his own behalf appellant swore that he and deceased were close friends, and that if he cut deceased on the occasion in question he did not know it at the time, and that he had offered to pay the expenses, — all evidently for the purpose of rebutting any inference of malice, ill-will or evil intent, — we would not seriously think it any error for the state thereafter to ask, on cross-examination, the mother of deceased, who testified for the defense, — if appellant had paid the funeral expenses of deceased, which question she answered in the negative. It is not of moment, but the testimony of this witness on the point, as revealed by the statement of facts, is that “Charlie Green has never paid me a dime for the expenses of Votie’s illness; his funeral expenses were paid by the K. of P. Lodge.” It would appear reasonable that the state might thus show that appellant’s deeds and words were not in accord, and that the former rebutted and overcame the latter. It might also be reasonable to hold that in case appellant had paid such expenses, this fact might shed light on the motive of the mother of deceased in giving testimony favorable to appellant. We are of opinion the cross-examination was permissible. The facts, and hence of course the law applicable, are wholly variant from those in Fowler v. State, 118 Texas Crim. Rep., 419, 38 S. W. (2d) 97, to which our attention has been called.

The hypothetical question by appellant to Dr. Marberry, the objection by the state to which was sustained, appears to have no fair foundation in any statement of facts herein. It appears without apparent question that Dr. Shirley, the colored doctor to whose office deceased was carried, gave what he called first aid to a man in a state of near collapse by sewing up the wound made by the knife of appellant in the walls of the abdomen, in which wound Dr. Shirley said he put a wick drainage consisting of a piece of gauze, — and that deceased was at once thereafter taken in an ambulance to the hospital of Dr. Rush in the same city, and that Dr. Rush at once examined him, and after cutting the stitches of the wound sewed up by Dr. Shirley, discovered that the stomach as well as the abdomen had been penetrated by the knife, and that contents of [358]*358the stomach were leaking out.. No witness testified that these operations were two hours apart, nor did Dr. Rush venture a suggestion as to how long the external wound had been sewed up when deceased was brought to the hospital, except to say that it was “rather recently.” He did testify “The bleeding would have been the same whether or not he had been sewed up.” He was the only physician who saw deceased upon his arrival at the hospital, and he nowhere says that the wound was improperly sewed up. He corroborated Dr. Shirley in saying that deceased was in such condition of shock as that he could not stand much.

Two bills of exception complain of the court’s action in sustaining objections to questions propounded to Dr. Shirley who had testified that he put a piece of gauze, commonly called a wick drainage, in the abdominal wound which he treated, one of the questions being “If Dr. Rush says the wound was sewed up tight, what would you say about it?” The other question was of similar import. There is no doubt but that such question was merely argumentative and called for no fact. The remaining bill was taken to the argument of the district attorney who said: “Ah! Gentlemen of the Jury, such a friend that Charlie Green is. It might not be a negro next time.” The court qualifies this bill of exception and says the argument was made in reply to that of appellant’s counsel.

No error appearing, the judgment will be affirmed.

Affirmed.

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46 S.W.2d 1001, 120 Tex. Crim. 355, 1932 Tex. Crim. App. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-state-texcrimapp-1932.

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